Document Headings

                    Document headings vary by document type but may contain                    the following:                  
                -                       the agency or agencies that issued and signed a document                    
                -                       the number of the CFR title and the number of each part                      the document amends, proposes to amend, or is directly                      related to                    
                -                       the agency docket number / agency internal file number                    
                -                       the RIN which identifies each regulatory action listed in                      the Unified Agenda of Federal Regulatory and Deregulatory                      Actions                    

                    See the                                          Document Drafting Handbook                                        for more details.                  

###### Federal Trade Commission

          - [File No. 102 3064]

# AGENCY:

Federal Trade Commission.

# ACTION:

Proposed consent agreement.

# SUMMARY:

The consent agreement in this matter settles alleged violations of Federal law prohibiting unfair or deceptive acts or practices or unfair methods of competition. The attached Analysis to Aid Public Comment describes both the allegations in the draft complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.

# DATES:

Comments must be received on or before February 11, 2011.

# ADDRESSES:

                        Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Tested Green, File No. 102 3064” to facilitate the organization of comments. Please note that your comment—including                               ( print page 2909)                            your name and your state—will be placed on the public record of this proceeding, including on the publicly accessible FTC Web site, at                         *http://www.ftc.gov/​os/​publiccomments.shtm.*

                        Because comments will be made public, they should not include any sensitive personal information, such as an individual's Social Security Number; date of birth; driver's license number or other State identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include any “[t]rade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential * * *,” as provided in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c), 16 CFR 4.9(c).[1] 

                        Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted by using the following Web link:                         *https://ftcpublic.commentworks.com/​ftc/​testedgreen*                         and following the instructions on the Web-based form. To ensure that the Commission considers an electronic comment, you must file it on the Web-based form at the Web link:                         *https://ftcpublic.commentworks.com/​ftc/​testedgreen.*                         If this Notice appears at                         *http://www.regulations.gov/​search/​index.jsp,*                         you may also file an electronic comment through that Web site. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC Web site at                         *http://www.ftc.gov/​*                         to read the Notice and the news release describing it.                    

A comment filed in paper form should include the “Tested Green, File No. 102 3064” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-135 (Annex D), 600 Pennsylvania Avenue, NW., Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

                        The Federal Trade Commission Act (“FTC Act”) and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC Web site, to the extent practicable, at                         *http://www.ftc.gov/​os/​publiccomments.shtm.*                         As a matter of discretion, the Commission makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC Web site. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy, at                         *http://www.ftc.gov/​ftc/​privacy.shtm.*

# FOR FURTHER INFORMATION CONTACT:

Elsie B. Kappler (202-326-2466), Bureau of Consumer Protection, 600 Pennsylvania Avenue, NW., Washington, DC 20580.

# SUPPLEMENTARY INFORMATION:

                    Pursuant to section 6(f) of the Federal Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and § 2.34 of the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of thirty (30) days. The following Analysis to Aid Public Comment describes the terms of the consent agreement, and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained from the FTC Home Page (for January 11, 2011), on the World Wide Web, at                     *http://www.ftc.gov/​os/​actions.shtm.*                     A paper copy can be obtained from the FTC Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW., Washington, DC 20580, either in person or by calling (202) 326-2222.                

                    Public comments are invited, and may be filed with the Commission in either paper or electronic form. All comments should be filed as prescribed in the                     **ADDRESSES**                     section above, and must be received on or before the date specified in the                     **DATES**                     section.                

## Analysis of Agreement Containing Consent Order To Aid Public Comment

The Federal Trade Commission has accepted, subject to final approval, an Agreement Containing Consent Order from Nonprofit Management LLC and Jeremy Ryan Claeys, also doing business as Tested Green (``respondents'').

The proposed consent order has been placed on the public record for thirty (30) days for receipt of comments by interested persons. Comments received during this period will become part of the public record. After thirty (30) days, the Commission will again review the agreement and the comments received, and will decide whether it should withdraw from the agreement and take appropriate action or make final the agreement's proposed order.

                    This matter involves the advertising, marketing, and sale of environmental certifications. From approximately February 2009 to April 2010, respondents marketed the Tested Green certification using their Web site,                     *http://www.testedgreen.com,*                     as well as mass e-mails linking to their Web site. The marketing claimed that Tested Green was the “nation's leading certification program with over 45,000 certifications in the United States.” However, respondents never tested any of the companies to which they issued certifications, and certified anyone willing to pay a designated fee of either $189.95 for a “Rapid” certification, or $549.95 for a “Pro” certification. Immediately upon certifying companies, respondents provided them with HTML text for the Tested Green logo and a “certification verification page” that they could, in turn, use to advertise their Tested Green certified status. Respondents also claimed that Tested Green was endorsed by the National Green Business Association (“NGBA”) and the National Association of Government Contractors (“NAGC”), two organizations which they own and operate.                

                    The Commission alleges that the Tested Green certification constituted an express or implied representation that the products, services, programs, or entities bearing the certification had been independently and objectively evaluated based on their environmental attributes or benefits, when, in fact, they had not. Additionally, by furnishing businesses with the certification and the tools to advertise it, respondents provided such businesses with the                           ( print page 2910)                        means and instrumentalities for the commission of deceptive acts and practices, and accordingly, themselves committed a deceptive act in violation of Section 5 of the FTC Act.                

The Commission also alleges that by stating that the NGBA and the NAGC endorsed Tested Green, respondents represented expressly or impliedly that they were independent from these organizations, when, in fact, they own and operate NGBA and NAGC. Therefore, respondents' statement of endorsement by NGBA and NAGC was false and misleading, in violation of Section 5. Similarly, in light of respondents' express and implied representation that these organizations were independent, respondents' failure to disclose their relationship to NGBA and NAGC was deceptive, in violation of Section 5.

Part I of the proposed order prohibits respondents from misrepresenting: (1) The fact that, or degree to which, they have, or a third party has, evaluated a product, package, service, practice, or program based on its environmental benefits or attributes; (2) that respondents have, or a third party has, the appropriate expertise to evaluate the environmental benefits or attributes of a product, package, service, practice, or program; (3) the number of certifications issued by respondents; and (4) that a product, package, certification, service, practice, or program is endorsed by an independent person or organization.

Part II of the proposed order bars respondents, in connection with the labeling, advertising, marketing, promotion, offering for sale, sale, or distribution of any product, package, certification, service, practice, or program, from providing others with the means and instrumentalities to make, expressly or impliedly, any false or misleading statement.

Part III of the proposed order bars respondents from making any representation, expressly or by implication, about any user or endorser of a product, package, certification, service, practice, or program, unless they clearly and prominently disclose a material connection with such user or endorser, where one exists.

Parts IV through VIII of the proposed order are reporting and compliance provisions. Part IV requires respondents to retain documents relating to their compliance with the order. Part V requires dissemination of the order to all current and future principals, officers, directors, managers, employees, agents, and representatives having responsibilities relating to the subject matter of the order. Part VI ensures notification to the FTC of changes in respondent Nonprofit Management's corporate status. Part VII mandates that respondent Claeys notify the FTC of any changes in his business affiliations or employment. Part VIII mandates that respondents submit a report to the Commission detailing their compliance with the order. Part IX provides that the order expires after twenty (20) years, with certain exceptions.

The purpose of this analysis is to aid public comment on the proposed order. It is not intended to constitute an official interpretation of the proposed order or to modify its terms in any way.

By direction of the Commission.

Donald S. Clark,

Secretary.

# Footnotes

1.                                 The comment must be accompanied by an explicit request for confidential treatment, including the factual and legal basis for the request, and must identify the specific portions of the comment to be withheld from the public record. The request will be granted or denied by the Commission's General Counsel, consistent with applicable law and the public interest.                             *See*                             FTC Rule 4.9(c), 16 CFR 4.9(c).                        
        Back to Citation      

[FR Doc. 2011-926 Filed 1-14-11; 8:45 am]

BILLING CODE 6750-01-P